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To promote stable, constructive labor-management relations through the resolution and prevention of labor disputes in a manner that gives full effect to the collective-bargaining rights of employees, unions, and agencies.

20 FLRA No. 106
VETERANS ADMINISTRATION MEDICAL
CENTER, FARGO, NORTH DAKOTA
Activity
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 3884,
FARGO, NORTH DAKOTA
Union
Case No. 0-AR-1037
ORDER DISMISSING EXCEPTION
This matter is before the Authority on an exception to the award of
Arbitrator John J. Flagler filed by the Agency under section 7122(a) of
the Federal Service Labor-Management Relations Statute and part 2425 of
the Authority's Rules and Regulations. For the reasons that follow, the
Authority is without jurisdiction to review the Agency's exception an
the exception therefore must be dismissed.
The dispute before the Arbitrator essentially concerned the removal
for misconduct of the grievant, a registered nurse in the Agency's
Department of Medicine & Surgery (DM&S) who had been appointed under the
statutory provisions covering health-care professional employees engaged
in direct patient care, 38 U.S.C. chapter 73. The grievant was removed
based on the findings of a disciplinary board convened in accordance
with 38 U.S.C. 4110. /1/ Before the Arbitrator the Union argued that
the Agency had failed to fairly investigate this matter, and the
Arbitrator agreed, finding that the Agency had committed substantial and
harmful procedural errors. The Arbitrator further found that these
errors deprived the disciplinary board of jurisdiction, making its
findings of no force and effect, and that the parties' collective
bargaining agreement permitted him to take appropriate corrective action
to restore to the grievant the rights denied her. Accordingly, the
Arbitrator ordered that the grievant be reinstated with backpay and
directed that the Agency either drop the charges against her or
reconstitute a new board of investigation to inquire into those charges.
In its exception the Agency essentially contends on the basis of
Veterans Administration, Washington, D.C. and Veterans Administration
Medical Center, Minneapolis, Minnesota, 15 FLRA No. 176 (1984) that the
award is contrary to law because the disciplinary procedures of 38
U.S.C. 4110 preclude grievances over disciplinary actions taken in
accordance with such procedures. In its exception the Agency further
contends that notwithstanding section 7122(a) and section 7121(f) of the
Statute, the Authority should resolve the exception and find the award
deficient. The Authority finds contrary to the Agency that no basis is
presented for the Authority to resolve the exception.
Section 7122(a) of the Statute /2/ expressly precludes the filing of
an exception to an arbitration award relating to a matter described in
section 7121(f) of the Statute. As relevant to this case, the matters
described in section 7121(f) of the Statute /3/ include matters similar
to those covered under 5 U.S.C. 757612 which arise under other personnel
systems. Matters covered under section 7512 are specified adverse
actions including removal. Under section 7121(f) the review of an
arbitration award relating to similar matters that have arisen under
another personnel system may be obtained in the same manner and on the
same basis as that of a final decision in such a matter raised under
applicable appellate before the Arbitrator and the substance of the
award resolving that dispute relate to the grievant's removal for
professional misconduct to the provisions of 38 U.S.C. chapter 73, and
the Authority concludes that such a matter is similar to those covered
under section 7512 and has arisen under another personnel system within
the meaning of section 7121(f). E.g., Veterans Administration Medical
Center, Lebanon, Pennsylvania and American Federation of Government
Employees, Local 1966, 16 FLRA No. 113 (1984). Therefore, the
Arbitrator's award relates to a matter described in section 7121(f), and
under section 7122(a), exceptions to the award may not be filed with the
Authority. Consequently, and apart from other considerations, /4/ the
Authority is without jurisdiction to review the exception. Accordingly,
the exceptions and the request for a stay are dismissed.
Issued, Washington, D.C. 13, 1985
(s)---
Henry B. Frazier III, Acting
Chairman
(s)---
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 4110(a) provides for the appointment of disciplinary
boards to determine charges of inaptitude, inefficiency, or misconduct
of fulltime, nonprobationary physicians, dentists, nurses, and nurse
anesthetists.
/2/ Section 7122(a) of the Statute pertinently provides:
Either party to arbitration under this chapter may file with the
Authority an exception to any arbitrator's award pursuant to the
arbitration (other then an award relating to a matter described in
section 7121(f) of this title).
/3/ Section 7121 (f) pertinently provides:
In matters similar to those covered under sections 4303 and 7512 of
this title which arise under other personnel systems and which an
aggrieved employee has raised under the negotiated grievance procedure,
judicial review of an arbitrator's award may be obtained in the same
manner and on the same basis as could be obtained of a final decision in
such matters raised under applicable appellate procedures.
/4/ In this regard, the Authority did decide in VA, Washington, D.C.,
15 FLRA No. 176, cited by the Agency in its exception, essentially that
because the procedures of 38 U.S.C. 4110 are intended to be the
exclusive procedures for determining professional misconduct of covered
employees, grievances over disciplinary actions taken pursuant to that
provision are precluded by law. However, that decision did not involve
any question of the Authority's jurisdiction to resolve exceptions to
arbitration awards under section 7122(a) of the Statute. Rather, the
question decided by the Authority in the cited unfair labor practice
case was whether the Respondent Agency had violated section 7116(a)(1)
and (5) of the Statute by failing to publish and put into effect a
locally negotiated agreement provision concerning discipline of unit
employees after an untimely disapproval of the provision by the Agency
head. The Authority found that the Respondent was under no obligation
to bargain concerning disciplinary and adverse action proposals insofar
as such proposals related to disputes regarding alleged professional
misconduct as such matters are exclusively controlled by 38 U.S.C. 4110.
Accordingly, the Authority held that since the agreement provision in
dispute was not limited in any way, it conflicted with applicable law
and, therefore, the Respondent did not violate the Statute as alleged by
failing to publish, effectuate or abide by the provision.